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- The child’s claim to maintenance
Family law information
Specialist lawyer for family law
Telephone: 02253 96 02 17
Fax: 02253 89 30
Telephone: 02253 96 02 17
Fax: 02253 89 30
The child’s claim to maintenance
Section 1601 of the German Civil Code stipulates that persons who are related to each other in a straight line are obliged to maintain one another.
Maintenance can only covet those who are unable to maintain themselves, i.e. who is in need. The law assumes that basically everyone has to make a living themselves. In the case of a minor, unmarried child, proof of the lack of wealth is sufficient. A minor child need not attack the tribe of his or her assets.
On the other hand, you only have to pay maintenance if you are capable, i.e. your own adequate maintenance is ensured. The maintenance debtor must therefore have sufficient income or assets.
2. Type of maintenance
The maintenance is to be granted by paying a cash pension (so-called cash maintenance). In addition, there is the so-called natural maintenance, which is the normal case of maintenance support if the parents live together with the minor child (ren). Finally, maintenance can also be provided through care, so-called care maintenance. When distinguishing between the three types of maintenance, it is necessary to differentiate between the cases in which a child lives in an intact marriage with its parents and the cases in which the parents live separately, divorced or in which their marriage was dissolved.
Section 1612 (2) of the German Civil Code stipulates that parents can decide in relation to an unmarried child in what manner and for what time maintenance is granted in advance. This will generally be the case with intact marriages. The child is cared for and fed, he is granted an apartment and is otherwise fully cared for. In addition, it is cared for and brought up by the caring parent. Up to now, Section 1606 (3) sentence 2 of the German Civil Code stipulated that the mother generally fulfills her obligation to support a minor unmarried child by caring for and bringing up the child. This traditional regulation has been changed and modernized by the Child Maintenance Act, which came into force on July 1st, 1998. It is no longer a question of the mother, but rather of the parent who looks after a minor and unmarried child.
If the parents live separately from one another and the minor child with one parent, the parent usually fulfills his part in the maintenance obligation by caring for and raising the child. The other parent, who does not look after the child, fulfills his maintenance obligation by paying a cash amount. The caring parent is only obliged to maintain cash in exceptional cases. Cash maintenance and childcare support are to be regarded as equivalent for underage children.
After the child has reached the age of majority, no more childcare benefits are owed, since according to the law a child of legal age can no longer be looked after. Both parents are now subject to cash maintenance according to their income and financial circumstances, regardless of whether something changes in the living conditions of the child or not, e.g. attended school or continued vocational training. The new statutory regulation in the Child Maintenance Act (Section 1603 Paragraph 2 Sentence 2 BGB), which stipulates that underage and unmarried children are equal to adult unmarried children up to the age of 21, as long as they live in the household of the parents or one parent and themselves in general school education does not change the fact that an adult child is no longer childcare and that both parents are responsible for this adult child in cash. The legislator has expressly expressed this in the justification for the draft Child Maintenance Act.
3. Right of determination according to § 1612 BGB
According to this provision, parents have the right to an unmarried child (i.e. both a minor and an adult child) to determine in what manner and for what time advance support is granted. According to the new Childhood Reform Act, parents have to take due account of the child’s interests.
The exercise of the right of determination is not possible if the parents of a minor child live separately. In this case, the parent who is not a custodian only has the right to determine maintenance if he has taken the child into his household. This does not include a temporary stay, e.g. during the holidays.
The right of determination can only be used if all needs are to be covered (accommodation, food, clothing, pocket money, etc.).
In the case of minors, only the holder of custody has the right to determine.
In the case of an adult, the parent can usually determine the amount of maintenance that is used by the child to pay maintenance. If all the maintenance is offered by the person liable for maintenance (accommodation, food, clothing, pocket money, etc.), the child’s maintenance-related concerns are only affected in exceptional cases. This e.g. For example, if the child has previously lived with the other parent and would also like to stay there because he is completing an apprenticeship or studying there.
For special reasons, the court can change the determination of the parents according to § 1612 sentence 2 BGB; however, this is only possible if there are special reasons that render the right of determination ineffective. This is the case, for example, if the behavior of the parents has led to a serious disturbance in the relationship of trust, for example if there is violence on the part of the parents.
The cases of profound alienation between are problematic Parents and Child and the impact of this on the right of identification. The majority of courts assume that there is no effective exercise of the right of a maintenance debtor to determine if there is an objectively identifiable alienation between the child and the parent. Only when the adult child is intent on causing disruption and alienation to prevent the exercise of the right of determination does it appear justified to leave the parents’ right to determine effective in this case.
However, if the parents have effectively exercised their right of designation and the child does not follow this decision, they cannot claim cash support.
4. Rank of maintenance claims
If a person liable for maintenance is unable to meet all the entitlements of entitled persons due to a lack of sufficient capacity, the question of which beneficiary receives which amount of maintenance depends on the rank of the maintenance claims. The beneficiary who takes a different rank is entitled to cover his full needs, not just the minimum requirements.
Section 1609 BGB determines the order of the beneficiaries. After that, the minor child comes first, the adult unmarried child being equal to the minor child, as long as the adult unmarried child lives in the household of the parents or one of the parents and is in general school education. General school education, for example, can be assumed from a student who wants to achieve the Abitur. In second place are the child-caring spouse and the current or divorced spouse if the marriage was long. Third place is given to all spouses who do not fall into second place. The fourth tier is the adult children who are either married and / or no longer live with their parents or one of their parents or who are no longer in general schooling. This differentiation in adult children is the result of the new legal regulation. These children also fall into this rank if they are disabled.
Grandchildren fall in the fifth grade, parents in the sixth and relatives in the seventh ascending line. The subordinate maintenance claimant only comes into play when the claims of the priority beneficiary are fully satisfied.
5. Beginning and end of the claim
A child’s claim to maintenance begins with the birth of the child and generally lasts until the end of life, although the cases in which an older child is in need of maintenance and the child’s living parents are capable are certainly very rare. The normal case is therefore that a child’s right to maintenance expires after completing an apprenticeship, since the child can then make a living himself. The maintenance obligation extends to the cost of adequate prior training for a profession. The level of training to be granted depends on the child’s talent and abilities, willingness to perform and the notable tendencies of the child. In principle, parents only have to provide adequate vocational training. You are not obliged to pay maintenance for the purpose of obtaining another or new training position. The children in training have the obligation to carry out the training seriously and to go through it quickly. A student must adhere to the curriculum relevant to his degree program. A strolling study does not have to be financed by the parents. This does not mean that the minimum period of study is decisive when studying. However, a seriously pursued study can be requested based on the available curricula. If a doctorate follows a course of study, there is generally no entitlement to maintenance. The maximum funding period according to the Federal Training Funding Act regularly provides an indication of the time within which an apprenticeship is to be ended. A single failure to pass an exam, including an intermediate exam, does not immediately result in the loss of maintenance if there are no additional circumstances that speak for the unsuitability of the chosen training. However, if the student fails to pass twice in connection with the loss of the right to study, this is different. Exceptionally, long-term training can be harmless, e.g. when the parents have not fulfilled their obligation to pay full maintenance, so that the child has to do sideline activities. This also applies if illness or examination anxiety were the reason for the delay. You will be able to grant trial periods of two to a maximum of three semesters during your studies.
If a child does not complete an apprenticeship at first (e.g. because he does not want to or because he or she is given an unskilled job as a more attractive job or the like), the question arises as to how long the child can demand maintenance from the parents to finance an apprenticeship. The training entitlement is not unlimited in time. However, there is no absolute age limit either. The OLG Stuttgart did not see any reason to deny a maintenance claim for an apprenticeship that started when there was a delay of 5 years between leaving school and studying. However, there must be understandable reasons in the child’s previous training course in order to then affirm a maintenance claim.
If the child has the desire to start another or a second training after the end of an apprenticeship and if he also requests maintenance for this period of training, such a claim exists only exceptionally. If adequate vocational training was granted, the parents basically fulfilled their obligation. You are not required to pay further maintenance. However, there are the following exceptions to this basic rule if
- the profession cannot be practiced for health reasons or for other unforeseeable reasons, the child has been pushed into the wrong education,
- the training was only completed at the request of the parents,
- the first training was based on a clear misjudgment of the child’s talent,
- the further training can be seen without any doubt as a mere further training in the narrow factual and temporal connection to the previous training path.
The BGH differentiated between the so-called Abitur / teaching / study cases and the cases in which the middle maturity was followed by an apprenticeship, then the technical college and then the technical college.
The BGH assumes that parents of high school graduates must generally also expect the child to have a university education. In contrast, a child who has obtained a secondary or junior high school diploma cannot be predicted, nor can it be assumed that a practical education will lead to a secondary school or study. From this, it was concluded that someone who completes high school and does an apprenticeship and only then decides to study can request maintenance, whereas a graduate from a secondary or secondary school can no longer be financed a technical college or university of applied sciences after an apprenticeship.
However, there must be a close factual connection. This is e.g. with a bank apprenticeship and a subsequent law degree.
7. Child unemployment
In general, there is no obligation for minors and adults to work as long as they are in school or vocational training. However, if they still generate income from holiday jobs or income from part-time work during the holidays, the children do not have to count the income from this activity against the maintenance claim, since it is income from an unreasonable activity. Such earned income must only be taken into account in exceptional cases if it is not only minor or occasional income and it is so high that it e.g. go well beyond a generous allowance for the student.
If an underage or adult child no longer goes to school and / or if it is not possible to train for a job, there is generally no need for maintenance. It can then be pointed out (in the case of a minor child with the restriction of the Youth Labor Protection Act) that it covers one’s own maintenance through employment. Between the end of school education and the commencement of further training (apprenticeship or study), the child must be granted approximately three months, during which there is no obligation to work, although a maintenance claim can still be made. After that, the child has to make a living, even simple tasks are reasonable.
However, income that a child generates from assets (such as rental income or interest income) is always taken into account..
Social assistance and child advance payments do not reduce the child’s need. They are subordinate to the maintenance claim.
The BAföG, however, is to be counted as income, even if it is granted on a loan.
Unemployment benefit and housing benefit may be taken into account.
8. Increased maintenance obligation
Parents are generally obliged to minors and to children of full age who are privileged according to section 1603 (2) sentence 2 of the German Civil Code (BGB) to use all available means equally for their own maintenance. The parents have an increased maintenance obligation. At least the minimum maintenance must be ensured. If necessary, overtime must also be worked or secondary activities taken up. Non-professional or underqualified activities can also be expected. If the person liable for maintenance does not achieve the income that ensures the minimum maintenance, he must be positioned as if he had not taken the performance-reducing actions. Then he has to count the income he would have had if he had acted correctly.
However, the increased obligation only applies to minors and children of full age who are privileged within the meaning of Section 1603 (2). If this privilege does not exist, ie the adult child is no longer in general school education and does not live with a parent, the above principles do not apply. The person liable for maintenance does not have to make any efforts to purchase that are subject to mandatory over-disclosure and can also claim an appropriate deductible of € 1,150.00. Compared to minors, the necessary deductible for an employed person is € 950.00 for employment, € 770.00 for non-employment.
9. Summary of the peculiarities of the child’s claim to maintenance
a.) The privileged adult child
The same employment obligations and principles apply to these privileged children within the meaning of the aforementioned regulation as for underage children. This is not the case with other adult children. This means that the parents have the appropriate large deductible. In the case of non-privileged adults of full age, there is also no need for secondary employment besides full-fledgedness.
Child care is no longer owed to an adult child. Both parents are required to pay cash maintenance insofar as they are capable. Equality between underage and privileged adult children in accordance with section 1603 (2) sentence 2 BGB does not change this.
The adult child has the obligation to complete and finish an apprenticeship quickly and purposefully. If it is no longer in training because it has terminated or ended it, it must take on any kind of work, including auxiliary work.
When looking for a job after completing an apprenticeship or for the period between the end of school education and an apprenticeship or study, an adult child of at least three months must be granted an orientation phase. A maintenance title that regulates the maintenance of a minor child continues to apply after the child has reached the age of majority. Unless it was limited in time from the outset.
Completion of the age of 18 affects the maintenance calculation from the 1st of the month in which the age of 18 ended. It doesn’t depend on the specific birthday. This is derived from section 1612 (3) sentence 2 BGB.
When calculating the adult maintenance, the child benefit must be divided equally. While the question of how the child benefit should be divided between the parents was not regulated by law until July 1st, 1998, the Child Maintenance Act now introduced a legal regulation in § 1612 b BGB, which however follows the previous case law. According to this regulation, half of the child benefit attributable to the child is to be offset. The legislator has deliberately and explicitly formulated: "the child benefit attributable to the child". He no longer wants to do the same with several community children as before, according to which the total child benefit paid for all children has been added up and divided by the number of community children and the resulting amount for each child has been divided proportionately between the parents. Rather, what is wanted with the new legal regulation is that the child benefit paid specifically for the individual child is divided up.
It has long been controversial how state child benefit is to be counted for an adult child. Child benefit, like any training allowance earned after deduction of additional work-related requirements, is to be credited to the adult in full in order to reduce the need. The BGH has this by judgment of October 26, 2005 decided. This ends the legal dispute as to how child benefit is to be offset if only one parent maintains the adult child. According to previous case law, it was only in these cases that child benefit was only partially credited.
According to the new BGH case law, in the event that only one of the two parents is efficient and provides cash support, the child benefit is no longer divided equally. Rather, child benefit is to be treated as the children’s own income in the case of children of legal age.
b.) Life needs and needs assessment
As with underage children, the child’s claim to maintenance also covers the entire life requirement (costs for accommodation, meals, clothing, pocket money, education, etc.). The maintenance is calculated according to the Düsseldorf table. For children who have reached the age of 18 and live with one parent, it is calculated according to the fourth age group. For students who do not live with a parent, it is usually € 670.00.
If the adult child lives in their own household without studying (i.e. is still a student or is in training), the amount of € 670.00 is usually the appropriate amount of maintenance.
However, opinions differ on the extent to which a possible training allowance is to be counted towards the maintenance. Occupational expenses can be deducted in advance. According to the comments on the Düsseldorf table, the child who lives in the household of the parents or a parent is granted an amount of € 90.00 for additional training-related expenses. This is sometimes also the case for a child with his own household.
c.) Liability distribution
Both parents are required to pay cash maintenance to the child, regardless of whether the adult child lives with one parent in the household and is actually still looked after by the parent. This also applies to privileged adult children. If only one parent is capable, the child bears the full maintenance burden. Does the inefficient parent provide care services, e.g. by giving the child provides a room, does the laundry and the like, this does not reduce the amount of maintenance to be paid by the person liable for cash maintenance.
If the adult child has his or her own income and only one parent is capable, the amount of the allowance that can be offset is not fully deducted from the cash support. If the other non-capable parent still provides childcare services, which will generally be limited to the granting of housing and household activities, the training allowance must also be counted towards childcare support in accordance with the monetary value of this childcare service.
However, there is no longer any equivalence between childcare and cash maintenance, so the training allowance with a quota of 2/5 to 3/5 in favor of the person liable for cash maintenance must be taken into account (at least OLG Düsseldorf FamRZ 1997, page 1106).
When calculating the share of each parent in the cash support to be paid, the eligible income of the parents must first be determined. If only one parent is capable, since only he has income that is higher than the appropriate deductible of € 1,150.00, he must pay for the cash maintenance alone. If both parents are capable, the amount of the maintenance claim must first be calculated in accordance with the statements made above. Both parents’ net income must be calculated in order to be able to calculate the maintenance claim at all. For the distribution of the maintenance due to the child between the parents, it is then a question of the deductible net income. First, an appropriate deductible of € 1,150.00 is deducted from this. The maintenance claim is then calculated as follows:
The remaining needs of this child (after deducting any personal income earned and taking account of work-related costs and after deducting child benefit) are multiplied by the income calculated for each parent according to the above calculation method and then divided by the total income of both parents. So for example the needs of a studying child are € 670.00 and the father has an income of € 2,400.00 and the mother has an income of € 1,400.00, taking into account the appropriate deductible, each parent has a remaining income of € 1,250.00 for the father and € 250.00 with the mother. The child benefit is set at € 184.00 to meet needs, so that if the child has no further income, € 486.00 open Need exist. The following maintenance payments then result:
The mother has to pay € 81.00 (= € 486.00 x € 250.00: € 1,500.00), the father € 405.00 (= € 486.00 x € 1,250.00: € 1,500.00).
d.) Rank of maintenance claims
The maintenance entitlement of other people can have a significant influence on the maintenance claims of an adult, if these other people take precedence over the adult. The maintenance claims of minors and privileged children of legal age and the maintenance claims of the former or current spouse of the maintenance debtor take priority. The adult child is only entitled to maintenance if the claim of the primary beneficiary is fully satisfied. This subordinate also applies to the physically and mentally disabled adult child.
The only deciding factors are the age of the child and the question of whether it is privileged within the meaning of section 1603 (2) sentence 2 BGB.
e.) Forfeiture of maintenance claims
According to § 1611 BGB, the maintenance claim of an adult child can be canceled in whole or in part. A distinction should not be made between adult children who are privileged under Section 1603 (2) sentence 2 BGB and other children.
One of the three circumstances listed below must have been implemented:
Either the child must have become in need of moral fault or it must have grossly neglected its own maintenance obligation towards the person who is now dependent, or it must have been deliberately guilty of grave misconduct towards the maintenance person or a close relative of the dependent person. The legal consequence is that the person liable for maintenance only has to make a contribution to the maintenance that corresponds to the equity. However, the maintenance obligation can also be omitted entirely.
In all three case variants, all circumstances must be weighed up comprehensively. It is also necessary to take into account the parent’s own behavior.
The BGH is of the opinion that the child’s refusal to contact the child does not lead to an intentional serious misconduct.
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